The Federal Communications Commission (FCC) has released its Fifth Report and Order that revises its rules governing the Emergency Alert System (EAS). The Order, which is highly technical in nature and spans 130 pages, seeks to clarify and streamline the FCC’s Part 11 rules. Most importantly, it identifies the manner in which EAS Participants—which include radio and television broadcast stations, cable systems, wireline video systems, wireless cable systems, direct broadcast satellite (DBS) service providers, and satellite digital audio radio service (SDARS) providers—must be able to receive alert messages formatted in the Common Alerting Protocol (CAP). The Order also reiterates that all EAS Participants are required to be able to receive CAP-formatted EAS alerts no later than June 30, 2012. CAP is an Internet-based system that allows for more robust messaging, including audio and video alerts, and links to other sources of information about emergency information, instead of the simple text-based alert codes that come from the current system.

The FCC adopted the general requirement that EAS Participants be able to receive CAP-formatted messages in 2007 in the Second Report and Order in this proceeding. However, while it had established the deadline for CAP compliance (and twice extended it to the current June 30 deadline), it never adopted specific rules identifying equipment obligations or the procedures necessary to meet the new requirements. Even though final rules had not been adopted, many broadcasters and cable systems have already installed equipment assuming that it would meet final FCC rules. Accordingly, as the FCC notes, this Fifth Report and Order did not impose new obligations on EAS Participants, but rather specifies in detail how EAS Participants should implement this requirement.

Order HighlightsA CAP-based EAS will be a more flexible and robust public alert and warning system than the legacy daisy-chain EAS distribution system. It will also integrate the EAS with the Federal Emergency Management Agency’s (FEMA’s) Integrated Public Alert and Warning System (IPAWS). Highlights of the FCC action include the following:

Preservation of Legacy System: The FCC adopts what it calls a “transitional approach” to CAP implementation that will continue to make use of the legacy EAS network. Under this approach, EAS Participants are required to receive and convert CAP-formatted messages into messages formatted in the current EAS Protocol, which has a format identical to the National Weather Service’s (NWS’s) Specific Area Message Endcoding (SAME) protocol. This will allow alerts to be transmitted in SAME through the legacy system, triggering alerts down through the “daisy-chain” of participants, providing redundancy for the IP-based CAP system. The FCC reasons that this “CAP-in, SAME-out” transitional approach is both practical and cost-efficient because the legacy network still has many benefits (including the ability to operate during power and Internet outages, which would disable a wholly CAP based system when Internet access is disabled) and because the existing system is already so wide-spread and generally functions well.

The conversion of CAP into SAME allows alerts to be conveyed to down-stream recipients using the current EAS technology. The Commission felt that any other approach was premature at this time, given the potential for the CAP system to be disabled with interruptions in Internet services.

EAS Participants will be required to utilize the procedures for message conversion identified in the EAS-CAP Industry Group's (ECIG's) ECIG Implementation Guide, which was adopted by FEMA on September 30, 2010. EAS Participants are not, however, required at this time to adopt the ECIG Implementation Guide’s provisions for text-to-speech, as the FCC believed that this text to speech function was not reliable enough for emergency communications purposes.

With a view to improve the accessibility of emergency alerts for persons with disabilities, the revisions to Part 11 to require EAS Participants to use the enhanced rich text data in CAP messages to create video crawl displays to the extent that such files are provided by the alert initiator.

Monitoring: EAS Participants will be required to monitor FEMA's IPAWS system for federal CAP-formatted alert messages. They will be permitted to do so using RSS, ATOM or whatever interface technology is adopted by FEMA in order to interface with IPAWS.

The FCC decided that participants do not need to monitor alerts from state governors. There are technical issues as to how alerts from governors could be injected directly into the CAP system at this time. Some states have developed their own CAP implementation plans, which can be used for governor’s alerts. Alerts can also be relayed to FEMA for inclusion in IPAWS, and relayed to participants in that manner.

Waivers: The question of Internet access was considered in looking at whether to grant any blanket exceptions to the CAP compliance requirements, as some small stations and systems (particularly those in rural areas), might not have the full-time broadband Internet access necessary to monitor FEMA’s IPAWS for alerts. Several groups representing small or rural entities asked for blanket waivers for their members, but the FCC decided that it will not grant any “blanket exemption” for the basic EAS obligations of monitoring, receiving and processing CAP-formatted messages, even for very small cable systems.

The FCC will, however, presume that a temporary waiver is warranted for EAS Participants located where broadband Internet access is physically unavailable. Nevertheless, each waiver will be considered on a case-by-case analysis of the individual facts and circumstances, and shall be limited to a period of six months. Waiver extensions will be permitted if circumstances regarding physical broadband Internet access do not change, especially if no alternate delivery method (such as satellite) becomes available. The Commission also said that it would consider waivers where access was possible but prohibitively expensive, depending on the financial capacity of the waiver applicant.

The Commission did clarify the requirements for noncommercial radio broadcasters with stations acting as “satellites” of a primary station. As these stations merely rebroadcast the primary station, they will be deemed in compliance if CAP access is available at the authorized main studio of the primary station.

Intermediary Devices: In the Order, the FCC permits EAS Participants to meet their CAP-related obligations through the use of intermediary devices working in tandem with their legacy EAS equipment. Intermediary devices are stand-alone devices that monitor, receive and decode CAP-formatted messages that are then converted and put into a separate stand-alone legacy EAS device. However, some intermediary devices may only be a short term solution. Not all of these devices are capable of using the enhanced CAP text for generating a visual display, and the FCC has mandated that all intermediary devices must be capable of using a CAP message’s enhanced text to provide a visual display by June 30, 2015.

Other Technical and Implementation Decisions: The FCC makes numerous other decisions on technical and other implementation issues, including the following:

Revises and streamlines equipment certification to take into account standards and testing procedures adopted by FEMA;

Streamlines rules governing the processing of Emergency Action Notifications (EAN) and eliminates as unnecessary several provisions of Part 11, including the Emergency Action Termination (EAT) event code and Non-Participating National (NN) status;

Retains the EAS Handbook requirement, at least temporarily, while data from the National EAS Test is evaluated;

Adopts priorities for broadcast when messages are received by a Participant from both CAP and SAME systems; and

Requires that the 8 second attention signal be retained.

Effective Date: The Rules will become effective thirty days after their publication in the Federal Register.

Disclaimer

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.